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Court of Criminal Appeal 24 November 2005

CDR v Regina

[2005] NSWCCA 404

Assault & violenceDrugsTheft & propertyPublic order & justice offences
CONVICTION APPEAL POINTS NOT TAKEN AT TRIAL

Citation: CDR v Regina [2005] NSWCCA 404
Court: NSW Court of Criminal Appeal
Date: 24 November 2005
Judge(s): Simpson J, Adams J, Hoeben J (Hoeben J delivered the principal judgment; Simpson and Adams JJ agreed)

Background

The appellant was convicted in the District Court following a jury trial on five counts: robbery, two counts of assaulting a police officer, and two counts of resisting a police officer. The convictions arose from events on 3 January 2004 in Surry Hills, when the appellant snatched a woman's handbag and then struggled with police officers who pursued and arrested him.

At sentencing, two further drug offences (supply of heroin and ongoing supply of heroin), to which the appellant had earlier pleaded guilty, were also dealt with. The aggregate non-parole period imposed was two years and nine months.

On appeal, the appellant challenged both the convictions and the sentences, raising multiple grounds including the adequacy of jury directions and the Crown's alleged failure to properly identify which specific acts constituted one of the resisting charges.

  • Whether the appellant's arraignment in the absence of the jury or jury panel rendered the trial a nullity or caused a miscarriage of justice.
  • Whether the trial judge erred in directing the jury that they must determine whether the accused was "guilty or innocent" (rather than "guilty or not guilty").
  • Whether the trial judge incorrectly directed the jury that Constable Siva's evidence of subsequent events could corroborate Constable Davis's evidence on the assault charge.
  • Whether the trial judge failed to adequately direct the jury on the significance of Constable Siva potentially acting outside the scope of his duties.
  • Whether the Crown's failure to particularise which specific act or acts constituted the offence of resisting Constable Siva (Count 5) amounted to a miscarriage of justice.
  • Whether the Crown significantly and unfairly altered its case on Counts 2 and 3 during the trial.
  • Whether the sentences imposed were manifestly excessive.

Decision

The Court dismissed all grounds of appeal. The arraignment ground was abandoned before the hearing. On the "guilty or innocent" direction, the Court found no substantial error: while "not guilty" is technically preferable to "innocent," the direction as a whole made the correct standard plain to the jury, and counsel had not objected at trial.

On the corroboration and duty-of-care directions, the Court found no error in the trial judge's approach. The summing-up adequately addressed the relevant issues, and complaints not raised at trial carried limited weight on appeal in circumstances where no identifiable miscarriage had resulted.

On the particularisation point regarding Count 5, the Court found the charge was properly put to the jury as a continuing course of conduct during the appellant's arrest and transport, rather than as a series of discrete acts requiring individual identification. Counsel for the appellant at trial had understood the case in the same way and raised no objection. The relevant evidence was clearly identified to the jury, the case the appellant had to meet was not in doubt, and there was ample evidence to support the conviction.

The Crown case was described as a strong one, supported by multiple witnesses including civilian bystanders. The Court also rejected the sentence appeal, finding no manifest excess in the sentences imposed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Directing a jury to determine whether an accused is "guilty or innocent" rather than "guilty or not guilty" is technically imprecise, but the Court of Criminal Appeal confirmed it will not constitute reversible error where the overall direction correctly conveyed the applicable standard and no objection was taken at trial.
  • Where a ground of appeal was not raised at trial, the Court of Criminal Appeal treats the absence of any objection as a significant factor weighing against finding a miscarriage of justice on appeal.
  • A charge of resisting a police officer can properly be put to a jury as a continuing course of conduct rather than requiring the Crown to identify each individual act as a distinct instance of the offence, provided the accused is not left in doubt about the case to be met.
  • No error was established in the trial judge's decision not to compel the Crown to formally particularise Count 5, given that the evidence and summing-up made the nature of the charge clear to both the jury and the defence.
  • In dismissing the sentence appeal, the Court found that an aggregate non-parole period of two years and nine months for robbery, assaulting and resisting police (twice each), and supply of heroin offences was not manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 58, 94
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25A(1)

Cases:
- Bartho v The Queen (1978) 52 ALJR 520
- Director of Public Prosecutions v Shannon [1975] AC 717